| (I) enters this state at the request of, or is an affiliate
of, an in-state business entity and performs work in Texas under a
mutual assistance agreement; or
(II) enters this state at the request of an in-state
business entity, under a mutual assistance agreement, or is an affiliate
of an in-state business entity and enters this state at the request
of an in-state business entity, the state of Texas, or a political
subdivision of this state to perform disaster- or emergency-related
work in this state during the disaster response period, and:
(-a-) except with respect to the performance of disaster-
or emergency-related work, has no physical presence in this state
and is not authorized to transact business in this state immediately
before a disaster response period; and
(-b-) is not registered with the secretary of state
to transact business in this state, does not file a tax report with
this state, or a political subdivision of this state, and is not engaged
in business with this state for the purpose of taxation during the
tax year immediately preceding the disaster response period.
(M) A broadcaster, printer, outdoor advertising firm,
advertising distributor, or publisher that broadcasts, publishes,
displays, or distributes paid commercial advertising in this state
that is intended to be disseminated primarily to consumers located
in this state and is only secondarily disseminated to bordering jurisdictions,
including advertising appearing exclusively in a Texas edition or
section of a national publication, is considered for purposes of this
subsection to be the agent of the person placing the advertisement
and is not considered to be engaged in business in this state as a
result of those acts.
(5) Internet hosting service--The provision to an unrelated
user of access over the Internet to computer services using property
that is owned or leased and managed by the service provider and on
which the unrelated user may store or process the user's own data
or use software that is owned, licensed, or leased by the unrelated
user or service provider. The term does not include telecommunications
services as defined in §3.344 of this title (relating to Telecommunications
Services).
(6) Itinerant vendor--A seller who does not operate
a place of business in this state and who travels to various locations
in this state to solicit sales.
(7) Kiosk--A small, stand-alone area or structure that:
(A) is used solely to display merchandise or to submit
orders for taxable items from a data entry device, or both;
(B) is located entirely within a location that is a
place of business of another seller, such as a department store or
shopping mall; and
(C) at which taxable items are not available for immediate
delivery to a purchaser.
(8) Marketplace--A physical or electronic medium through
which persons other than the owner or operator of the medium make
sales of taxable items. The term includes a store, internet website,
software application, or catalog.
(9) Marketplace provider--A person who owns or operates
a marketplace and directly or indirectly processes sales or payments
for marketplace sellers.
(10) Marketplace seller--A seller, other than the marketplace
provider, who makes a sale of a taxable item through a marketplace.
(11) Permit holder--A person to whom the comptroller
has issued a sales and use tax permit. The term includes permitted
sellers as well as permitted purchasers, but does not include a person
who does not hold a Texas sales and use tax permit or whose sales
and use tax permit is suspended, pursuant to subsection (l) of this
section, or cancelled, pursuant to subsection (n) of this section,
or a person who has not received a sales and use tax permit due to
an unsigned or incomplete application.
(12) Place of business of the seller--This term has
the meaning given in §3.334 of this title (relating to Local
Sales and Use Taxes).
(13) Seller--Every retailer, wholesaler, distributor,
manufacturer, marketplace provider, or any other person who sells,
leases, rents, or transfers ownership of tangible personal property
or performs taxable services for consideration. Seller is further
defined as follows:
(A) A promoter of a flea market, trade day, or other
event that involves the sales of taxable items is a seller responsible
for the collection and remittance of the sales tax that dealers, salespersons,
or individuals collect at such events, unless those persons hold active
sales and use tax permits that the comptroller has issued.
(B) A direct sales organization that is engaged in
business in this state is a seller responsible for the collection
and remittance of the sales and use tax collected by the organization's
independent salespersons.
(C) Pawnbrokers, storage facility operators, mechanics,
artisans, or others who sell property to enforce a lien are sellers
responsible for the collection and remittance of sales and use tax
on the sale of such tangible personal property.
(D) A person engaged in business in this state who
sells, leases, or rents tangible personal property owned by another
person by means of a consignment sale is a seller responsible for
the collection and remittance of the sales tax on the consignment
sale.
(E) An auctioneer who owns tangible personal property
or to whom tangible personal property has been consigned is a seller
responsible for the collection and remittance of the sales and use
tax on tangible personal property sold at auction. For more information,
auctioneers should refer to §3.311 of this title (relating to
Auctioneers, Brokers, and Factors).
(14) Taxable item--Tangible personal property and taxable
services. Except as otherwise provided in Tax Code, Chapter 151, the
sale or use of a taxable item in electronic form instead of on physical
media does not alter the item's tax status.
(A) Tangible personal property means property that
can be seen, weighed, measured, felt, or touched or that is perceptible
to the senses in any other manner, including a computer program as
defined in §3.308 of this title (relating to Computers--Hardware,
Computer Programs, Services, and Sales) and a telephone prepaid calling
card, as defined in §3.344 of this title.
(B) Taxable services are those identified in Tax Code, §151.0101
(Taxable Services).
(b) Who must have a sales and use tax permit.
(1) Sellers. Except as provided in paragraph (2) of
this subsection, each seller who is engaged in business in this state,
including itinerant vendors, persons who own or operate a kiosk, and
sellers operating temporarily in this state, must apply to the comptroller
and obtain a sales and use tax permit for each place of business of
the seller operated in this state and a single permit for its out-of-state
places of business.
(2) Safe harbor for remote sellers.
(A) Remote seller defined. For purposes of this paragraph,
a remote seller is a seller engaged in business in this state whose
only activity in the state is described in subsection (a)(4)(I) or
(J) of this section.
(B) Safe harbor.
(i) Permitting and collection obligations. The comptroller
will not enforce the permit requirement of this subsection or the
collection obligation of subsection (d) of this section on a remote
seller whose total Texas revenue in the preceding twelve calendar
months is less than $500,000. If a remote seller's total Texas revenue
exceeds that amount, the remote seller shall obtain a permit and begin
collecting as provided in subparagraph (E) of this paragraph and shall
continue to collect unless it terminates its collection obligation
under subparagraph (F) of this paragraph.
(ii) Temporary storage of inventory. A remote seller
that is temporarily storing tangible personal property in Texas to
be used for fulfillment at a facility of a marketplace provider that
has certified that it will assume the rights and duties of a seller
with respect to the tangible personal property, as provided for in
this subsection, will not have to obtain a permit or have a collection
obligation. This subsection is not applicable to those remote sellers
who are above the safe harbor amount under clause (i) of this subparagraph.
(C) Total Texas revenue defined for purposes of this
paragraph.
(i) Total Texas revenue means the gross revenue from
the sale of tangible personal property and services for storage, use,
or other consumption in this state recognized under the accounting
method used by the seller, and includes separately stated handling,
transportation, installation, and other similar fees collected by
the seller in connection with the sale.
(ii) A remote seller shall include in total Texas revenue,
the aggregate sum of all sales made on all mediums, including all
marketplaces and the remote seller's own website. This clause takes
effect on April 1, 2020.
Cont'd... |
